ON MOTION FOR REHEARING. This case arose in the court of ordinary because an heir and legatee of an estate filed a citation for settlement against the executor under the Code, § 113-2201 et seq. Until there has been such settlement and accounting there is no adjudication of this right. In the former suit brought to remove the executors and for the appointment of a receiver there were allegations of mismanagement, which were stricken on demurrer. Such allegations only came "collaterally under consideration, and were only incidentally considered" as was stated by Judge Nisbet in Evans v. Birge, supra. The decision in the former case certainly did not hold that the distribute of an estate was not entitled to a *Page 208 settlement from the executor. It did decide that she was not entitled to have the executor removed and a receiver appointed, and that she had an adequate remedy at law, which remedy she is now pursuing. This court is not deciding what acts do or do not constitute mismanagement of an estate; such question is not before it on this appeal. There is no estoppel or former adjudication in the present suit, unless it is shown that a settlement and accounting have been had.
Rehearing denied. MacIntyre, J., concurs. Broyles, C. J.,dissents.